JUDGMENT : N.K. Gupta, J. 1. This criminal appeal is preferred by the appellant being aggrieved by the judgment dated 27/2/2001 passed by the Additional Sessions Judge, Harda in ST No. 171/1997 whereby the appellant has been convicted of offence punishable under Sections 363,366, 376(2)(g) of IPC and sentenced to ten years' RI with fine Rs. 3000/-, three years' RI with fine of Rs. 1000/- and three years' RI with fine of Rs. 1000/-. Default sentence was also imposed. 2. The prosecution's case, in short, is that on 9.3.1997 Birju (PW-4) has intimated the SHO of Police Station Harda that his niece prosecutrix was missing. His report was recorded in Rojnamcha Ex.P-5. Thereafter the prosecutrix was recovered and she had informed that the appellant and other three accused persons have kidnapped her. They took her to a field and they committed rape upon her. She was kept by the accused persons. The prosecutrix was sent for her medico legal examination. Dr. Malti Patel (PW-3) examined the prosecutrix and gave a report Ex.P-4. No external or internal injury was found on her person. However, two slides of her vaginal swab were prepared and handed over to the concerned constable after due sealing. After due investigation, a charge sheet was filed against the accused persons. Out of them, accused Bala @ Balaram was present and remaining three accused persons were declared absconding. The case was committed by the JMFC Harda and ultimately it was transferred to the Additional Sessions Judge, Harda. 3. The appellant-accused abjured his guilt. He did not take any specific plea, and therefore no defence evidence was adduced. 4. Since in this old appeal no one is appearing to argue the matter after the appeal was remanded back by the Apex Court, and therefore Shri Prakash Gupta, Advocate, whose name is there in the panel of High Court Legal Services Authority and who has vast experience in criminal side, is appointed too argue the matter on behalf of the appellant. Thereafter I have heard the learned counsel for the parties. 5. The first question which was to be answered in the present appeal as to whether the prosecutrix was below 16 years of age at the time of incident. Thereafter I have heard the learned counsel for the parties. 5. The first question which was to be answered in the present appeal as to whether the prosecutrix was below 16 years of age at the time of incident. In this respect the prosecutrix (PW-6) has stated that she was 16 years of age at the time of her statement and she was only 12 years of age when the incident took place with her. However, in the missing report Ex.P-5 it was mentioned by the witness Birju that the prosecutrix was 15 years old. Dr. Malti Patel (PW- 3) who examined the prosecutrix and gave her report Ex.P-4 has opined that the prosecutrix was 14 years of age. However, there was no basis available on record for computation of age of the prosecutrix. The prosecutrix was kidnapped in March 1997 and she was examined before the trial Court in November, 2000, and therefore the opinion given by Dr. Malti (PW-3) can be accepted that the prosecutrix was 14 years of age and below 16 years of age. 6. The prosecutrix (PW-6) in her examination-in- chief did not say anything about her kidnapping. She has stated that she went to village Udagaon to do some job of labour with Birju (PW-4). Birju has stated that when he found the prosecutrix missing, he had lodged an FIR Ex.P-5. Kashiram (PW-1) has stated that the prosecutrix informed that she was kidnapped by the appellant Bala @ Balaram. However, his evidence comes in the category of hearsay evidence. Sitaram (PW-2) could not say anything about the incident. He turned hostile. Birju (PW-4), who was local guardian of the prosecutrix at that time, did not say anything except about missing report. According to the prosecutrix she came to the Village Udagaon on her own to do the work of labour along with Birju etc. and thereafter she has stated that rape was committed by Dadu and Shantilal and the appellant was present at that time. She gave the description of rape done by other accused persons, but she did not state that appellant Bala @ Balaram has done anything against her. In 12th line of para 1 of her statement, she has denied that the appellant has done anything in taking her to the various places. She gave the description of rape done by other accused persons, but she did not state that appellant Bala @ Balaram has done anything against her. In 12th line of para 1 of her statement, she has denied that the appellant has done anything in taking her to the various places. She has further stated that Dadu and Shantilal took her to Village Chotra, but the appellant did not accompany Shantilal and Dadu. He left in the way. 7. The prosecutrix was declared hostile by the prosecutor and thereafter the prosecutrix has accepted that a compromise took place between her and the appellant, and she does not want that the appellant be punished. Thereafter again when a cross examination was done by the defence counsel, then she accepted that other accused persons took her to village Chotra and the appellant did not participate in her kidnapping. Similarly, she did not say that the appellant committed any rape upon her or he extorted anyone to do so. It appears that the prosecutrix has stated before the police that the appellant committed rape upon her but the statement under Section 161 of Cr.P.C. may be used for the purpose of contradiction and omission. It cannot be considered as a corroborative piece of evidence. When the prosecutrix has stated that the appellant did not participate in the alleged crime and she was taken by Dadu and Shantilal, then the appellant could not be convicted of the offence under Sections 363 and 366 of IPC. The trial Court has committed an error of law in convicting the appellant for such offence. 8. It is accepted by the prosecutrix that the appellant himself did not commit any offence of rape. His presence was accepted by the prosecutrix, but nothing has been alleged by the prosecutrix against the appellant that he had any common intention with other co-accused persons in doing the offence of rape, and therefore when the appellant himself neither commit the rape upon the prosecutrix nor he had any common intention with other co-accused persons in committing the gang rape upon the prosecutrix, the trial Court has committed an error of law in convicting the appellant for the offence under Section 376(2)(g) of IPC. 9. 9. In the present case, it is possible that the prosecutrix entered into a compromise with the appellant, but when she turned hostile and she did not support the prosecution story, then for convicting the appellant, corroboration of other witnesses was required. Since there is no corroboration of other witnesses and even in MLC report Ex.P-4, no marks of resistance etc. are indicated, whereas it is a case of gang rape done by four persons, and it is surprising that no external or internal injury was found on her person. Under these circumstances, the possibility cannot be ruled out that the prosecutrix has lodged a false case against the appellant. 10. On the basis of the aforesaid discussion, it would be apparent that the prosecution has failed to prove the alleged crime against the appellant. The trial Court has committed an error of law in convicting the present appellant for commission of offence under Sections 363, 366 and 376(2)(g) of IPC. Hence the present appeal filed by the appellant can be accepted. Consequently, it is hereby accepted. The conviction and sentence imposed by the trial Court for the offence under Sections 363, 366 and 376(2)(g) of IPC are hereby set aside. The appellant is acquitted from all the charges appended against him. He would be entitled to get the fine amount back if he has deposited the same before the trial Court. 11. The presence of the appellant is no more required, and therefore it is directed that his bail bonds shall stand discharged. 12. A copy of this judgment be sent to the concerned trial Court with its record for information and compliance.